The total circumstances that USCIS will consider when making a public charge determination under the 2022 rule

We previously discussed the United States Citizenship and Immigration Service, “USCIS” announcement of the new Public Charge Rule that will be implemented on December 23, 2022 here.

A noncitizen would be considered a public charge if the Department of Homeland Security, “DHS” determines based on a totality of the circumstance based analysis that a noncitizen is likely to become primarily dependent on the government for subsistence as further demonstrated by either the receipt of public cash assistance for income maintenance or long-term institutionalization at government expense.

If a noncitizen applying for a visa, admission or adjustment of status are found to be a public charge their application will be denied.

• Asylees and refugees;
• Amerasian immigrants at admission;
• Afghan and Iraqi interpreters or Afghan or Iraqi nationals employed by or on behalf of the U.S. government;
• Cuban and Haitian entrants at adjustment of status;
• Applicants seeking adjustment under the Cuban Adjustment Act;
• Nicaraguans and other Central Americans who are adjusting status to LPR;
• Haitians who are adjusting status to LPR;
• Lautenberg parolees;
• Special immigrant juveniles;
• Applicants for registry;
• Applicants seeking Temporary Protected Status (TPS);
• Certain nonimmigrant ambassadors, ministers, diplomats, and other foreign government officials, and their families;
• Human trafficking victims (T nonimmigrants);
• Victims of qualifying criminal activity (U nonimmigrants);
• Self-petitioners under the Violence against Women Act (VAWA);
• Certain battered noncitizens who are “qualified aliens” under PRWORA;
• Applicants adjusting status who qualify for a benefit as surviving spouses, children, or parents of military members;
• Noncitizen American Indians born in Canada;
• Noncitizen members of the Texas Band of Kickapoo Indians of the Kickapoo Tribe of Oklahoma;
• Nationals of Vietnam, Cambodia, and Laos applying under the Indochinese Act;
• Polish and Hungarian Parolees;
• Certain Syrian nationals;
• Applicants adjusting under the Liberian Refugee Immigration Fairness (LRIF) law; and
• Any other categories of noncitizens exempt under any other law from the public charge ground of inadmissibility provisions under INA 212(a)(4).

• Any current and/or past receipt of public cash assistance for income maintenance or long-term institutionalization at government expense. We have discussed the types of public assistance that do not lead to a public charge determination here.
• For all applicants for adjustment of status for a green card, USCIS must consider in reviewing the green card application form I-485 and the medical exam form I-693 the statutory minimum factors of the age; health; family status; assets; resources; financial status; education and skills.

USCIS must also favorably consider the employment and income information on a sufficient Affidavit of Support form I-864.

• Supplemental Security Income (SSI);
• Cash assistance under the Temporary Assistance for Needy Families (TANF) program; and
• State and local cash assistance programs that provide benefits for income maintenance (often called ‘‘General Assistance’’ programs).

USCIS will also consider an applicant’s institutionalization for long-term care at government expense, such as in a nursing home or mental health institution.

Fortunately, the receipt of public benefits by an applicant’s family members is not considered in a public charge inadmissibility determination under the 2022 Final Rule. Only public cash assistance for income maintenance or long-term institutionalization at government expense provided to the applicant, where the applicant is listed as a named beneficiary, are considered in a public charge inadmissibility determination.

Finally, although USCIS considers current and/or past receipt of public cash assistance for income maintenance and long-term institutionalization at government expense in the totality of the circumstances analysis, the past or current receipt of public cash assistance for income maintenance and long-term institutionalization at government expense is only one factor considered by USCIS.